JOSEPH ALAIMO vs. ARTHUR P. FREDETTE & another.

4 Mass. App. Ct. 866

December 23, 1976

We do not reach any question of whether the judge might have abused his discretion in denying the defendants' motion under Mass.R.Civ.P. 60 (b) (1), 365 Mass. 828 (1974). The judge, who had presided at the trial of the matter, made no findings of fact in connection with his denial of the motion ("After evidentiary hearing -- motion denied"). See the last sentence of Mass.R.Civ.P. 52 (a), 365 Mass. 816 (1974); Pierce v. Board of Appeals of Carver, 3 Mass. App. Ct. 352 , 353, n.4 (1975). For all that appears, the judge may not have believed some or any of the testimony offered in support of the motion.

Order denying relief from judgment affirmed.

HERBERT F. PIERCE & another vs. DAVID M. CRAWLEY & others.

4 Mass. App. Ct. 866

December 23, 1976

There was nothing in the allegations of the substitute complaint which would have warranted an inference that either of the plaintiffs had any private right in or to (a) the covenant executed by the original developers under the provisions of the fifth paragraph of G. L. c. 41, Section 81U (as amended through St. 1963, c. 581), or (b) any of the funds deposited by subsequent owners of the development under that paragraph. See and compare Gordon v. Robinson Homes, Inc. 342 Mass. 529 , 531-532 (1961). Accordingly, the allegation that the planning board had "voted to release the funds held by the [t]reasurer of the [t]own . . . knowing full well" that no measures had been taken to correct the cause of the injuries complained of by the plaintiffs could not be taken to mean that the vote of any of the individual members of the board had been cast in bad faith, maliciously or corruptly so far as either plaintiff was concerned. See Gildea v. Ellershaw, 363 Mass. 800 , 805, 820 (1973).

Page 867

The plaintiffs' request for leave to amend the substitute complaint is denied, and the judgment of dismissal is affirmed.